House of Representatives Committees

Chapter 2 Definitions of slavery,
slavery-like practices and people trafficking

2.1This chapter provides a brief outline of the principal international and
Australian definitions of slavery, slavery-like practices and people
trafficking.[1] It also discusses varying
understandings of these definitions and addresses the differences between
people trafficking and people smuggling.

Overview of international
definitions of slavery, slavery-like practices and people trafficking

2.2Slavery, slavery-like practices and people trafficking are defined in a
number of international instruments developed by the United Nations (UN) and
the International Labour Organisation (ILO).

Slavery

2.3Slavery is defined by the 1926 International Convention to Suppress
the Slave Trade and Slavery (Slavery Convention). Article 1 of the Slavery
Convention states that:

Slavery is the status or condition of a person over whom any
or all of the powers attaching to the right of ownership are exercised.[2]

2.4Australia ratified the Slavery Convention on 18 June 1927.[3]
There are currently 99 parties to the Convention.[4]

Slavery-like
practices and forced labour

2.5Slavery-like practices and forced labour are defined in two separate international
conventions:

nthe 1956 Supplementary
Convention on the Abolition of Slavery, the Slave Trade and Institutions and
Practices Similar to Slavery (Supplementary Slavery Convention); and

2.6The Supplementary Slavery Convention states that debt bondage, serfdom,
servile forms of marriage and the exploitation of children constitute practices
similar to slavery.[5] Article 1 of the Supplementary
Slavery Convention provides a definition for each of these slavery-like
conditions.

2.7Debt bondage is defined as:

…the status or condition arising from a pledge by a debtor of
his personal services or of those of a person under his control as security for
a debt, if the value of those services as reasonably assessed is not applied
towards the liquidation of the debt or the length and nature of those services
are not respectively limited and defined.[6]

2.8The Supplementary Slavery Convention defines Serfdom as:

…the condition or status of a tenant who is by law, custom or
agreement bound to live and labour on land belonging to another person and to
render some determinate service to such other person, whether for reward or
not, and is not free to change his status.[7]

2.9Servile forms of marriage are defined by the Supplementary Slavery Convention
as:

Any institution or practice whereby:

nA woman, without the
right to refuse, is promised or given in marriage on payment of a consideration
in money or in kind to her parents, guardian, family or any other person or
group; or

nThe husband of a
woman, his family, or his clan, has the right to transfer her to another person
for value received or otherwise; or

nA woman on the death
of her husband is liable to be inherited by another person.[8]

2.10The exploitation of children is defined as:

Any institution or practice whereby a child or young person
under the age of eighteen years is delivered by either or both of his natural
parents or by his guardian to another person, whether for reward or not, with a
view to the exploitation of the child or young person or of his labour.[9]

2.11Australia ratified the Supplementary Slavery Convention on 6 January
1958.[10] There are currently 123
parties to the Convention.[11]

2.12As noted earlier, the definition of forced labour established by the
Forced Labour Convention also encompasses slavery–like practices.

…all work or service which is exacted from any person under
the menace of any penalty and for which the said person has not offered himself
voluntarily.[12]

2.14The ILO states that this definition of forced labour encompasses varying
forms of exploitation, including slavery, slavery like-practices and people
trafficking.[13]

2.15Australia ratified the Forced Labour Convention on 2 January 1932.[14]
There are currently 177 parties to the Convention.[15]

People
trafficking

2.16People trafficking is defined by the 2000 Protocol to Prevent,
Suppress and Punish Trafficking in Persons, especially Women and Children,
supplementing the United Nations Convention against Transnational Organised
Crime (Trafficking Protocol). Article 3 of the Trafficking Protocol states:

“Trafficking in persons” shall mean the recruitment, transportation,
transfer, harbouring or receipt of persons, by means of the threat or use of
force or other forms of coercion, of abduction, of fraud, of deception, of the
abuse of power or of a position of vulnerability or of the giving or receiving
of payments or benefits to achieve the consent of a person having control over
another person, for the purpose of exploitation.[16]

2.17Australia ratified the Trafficking Protocol on 14 September 2005.[17]
There are currently 154 parties to the Convention.[18]

Overview of Australian definitions
of slavery, slavery-like practices and people trafficking

2.18Slavery, slavery-like practices and people trafficking are defined in
the Commonwealth Criminal Code Act 1995 (Criminal Code) which criminalises
a range of offences, including slavery, servitude, debt bondage and people
trafficking.[19]

2.19The Crimes Legislation Amendment (Slavery, Slavery-like Conditions
and People Trafficking) Act 2013 amended the Criminal Code to
establish additional offences of forced marriage, forced labour, organ
trafficking and harbouring a victim.[20] The Act received Royal
Assent on 7 March 2013.[21]

2.20The Attorney-General’s Department (AGD) informed the Committee that the
slavery, slavery-like practices and people trafficking offences contained
within the Criminal Code reflect Australia’s international obligations:

Australia’s definition of ‘people trafficking’ is consistent
with the international definition of ‘trafficking in persons’, set out in
Article 3 of the Trafficking Protocol...The elements of the other offences
contained within Divisions 270 and 271 of the Criminal Code (i.e. those
that criminalise slavery, slavery-like practices and people trafficking)
implement the Trafficking Protocol definition, Australia’s obligations under
the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and
Institutions and Practices Similar to Slavery, as well as a number of other
international instruments.[22]

Slavery,
forced labour, servitude, forced marriage and debt bondage

2.22Slavery involves the control or ownership of one person by another and
is defined in Division 270.1 of the Criminal Code as:

…the condition of a person over whom any or all of the powers
attaching to the right of ownership are exercised, including where such a
condition results from a debt or contract made by the person.[23]

2.23Forced labour is defined in Division 270.6 of the Criminal Code
and involves the exploitation of a person’s labour or services.[24]
A person may be a victim of forced labour where he or she is unable to stop
providing labour or services, or to leave the place where he or she provides
labour or services, because of the use of coercion, threat, or deception. A
victim could be coerced through force, duress, detention or psychological
oppression, or by somebody abusing their power or taking advantage of the
victim’s vulnerability.

2.24If the person is also significantly deprived of his or her personal
freedom, he or she may be a victim of the more serious slavery-like practice of
servitude. Servitude is defined in Division 270.4 of the Criminal Code.[25]

2.25Forced marriage is defined by Division 270.7A of the Criminal Code
as a marriage in which the victim enters the marriage without fully and freely
consenting, because of the use of coercion, threat, or deception.[26]
A victim could be coerced through force, duress, detention or psychological
oppression, or by somebody abusing their power or taking advantage of the
victim’s vulnerability.

2.26Debt bondage is defined in Division 271.8 of the Criminal Code
and involves the use of unfair debt contracts or similar arrangements to force
victims into paying off large debts.[27] For example, a victim
located overseas may be asked by the trafficker to pledge his or her services
to repay the costs of coming to Australia. Once the victim arrives, he or she
may be in a condition of debt bondage if the reasonable value of his or her
services is not applied to repay the debt, or the length or nature of his or
her services is not limited or defined.

People trafficking

2.27Division 271 of the Criminal Code contains a number of offences
related to trafficking in persons.[28] These offences reflect
the Australian Government’s definition of people trafficking as:

…the physical movement of people across and within borders
through deception, coercion or force for the purpose of exploiting them when
they reach their destination.[29]

The
differences between people trafficking and people smuggling

2.28People trafficking and people smuggling are complex and distinct crimes.
Article 3 of the UN Protocol against the Smuggling of Migrants by Land, Sea
and Air, supplementing the United Nations Convention against Transnational
Organized Crime defines people smuggling as:

…the procurement, in order to obtain, directly or indirectly,
a financial or other material benefit, of the illegal entry of a person into a
State Party of which the person is not a national or a permanent resident.[30]

2.29The United Nations Office on Drugs and Crime (UNODC) has identified four
main differences between people trafficking and people smuggling:

2.30A key difference between people trafficking and people smuggling is the
nature of consent. The UNODC states that:

…migrant smuggling, while often undertaken in dangerous or
degrading conditions, involves consent. Trafficking victims, on the other hand,
have either never consented or if they initially consented, that consent has
been rendered meaningless by the coercive, deceptive or abusive action of the
traffickers.[32]

2.31The end purposes of people trafficking and people smuggling are also
different. The UNODC argues that:

…migrant smuggling ends with the migrants’ arrival at their
destination, whereas trafficking involves the ongoing exploitation of the
victim.[33]

2.32A third difference between people trafficking and people smuggling is
the type of movement involved. The UNODC observes that:

…smuggling is always transnational, whereas trafficking may
not be. Trafficking can occur regardless of whether victims are taken to another
state or moved within a state’s borders.[34]

2.33The source of profits in people trafficking and people smuggling crimes
are also different. The UNODC notes that:

…in smuggling cases profits are derived from the
transportation of facilitation of the illegal entry or stay of a person into
another county, while in trafficking cases profits are derived from
exploitation.[35]

Community interpretations of
slavery, slavery-like practices and people trafficking definitions

2.34The Committee received evidence from Government Departments, Non‑Government
Organisations (NGOs), and concerned individuals who provided differing views on
the term people trafficking and the distinctions between people trafficking and
slavery, and between people smuggling and people trafficking.

Interpretations
of people trafficking

2.35Dr Anne Gallagher AO told the Committee that terms such as people
trafficking are used and understood in different ways, observing that:

While it has a specific meaning in international and national
laws, trafficking in persons…is today accepted as an umbrella concept for a wide
range of exploitative practices, often but not always motivated by private
profit.[36]

2.36Dr Gallagher added that:

It was previously assumed that ‘movement’ was an essential
aspect of the definition of trafficking in persons – that trafficking was
essentially the process by which individuals were moved into situations of
exploitation. However, international law and the overwhelming majority of
national laws support a broader understanding of the term whereby any ‘action’
(including receiving and harbouring a person) for ‘purposes’ of exploitation,
made possible through the use of ‘means’ such as coercion and deception,
constitutes trafficking.[37]

2.37World Vision Australia (WVA) agreed that the term people trafficking encompasses
a range of exploitative practices, noting that:

We believe that, today, the concept of trafficking in persons
in the meaning under international law is accepted as an umbrella concept for a
wide range of exploitation.[38]

2.38WVA also highlighted that interpretations of people trafficking
definitions are continuing to change:

The word ‘movement’ is not in the international definition of
trafficking. While previously assumed that there needed to be movement as an
essential element of the crime of trafficking, this has been replaced by the
understanding that trafficking is actually just a process by which individuals
are moved into situations of exploitation. There is a broader understanding
whereby any action, including ‘receiving’ and ‘harbouring’ for the purpose of
exploitation, will result in the end exploiter in the trafficking continuum
also being considered a trafficking offender.[39]

2.39At the final public hearing for this inquiry, AGD noted that the
Australian Government had revised its terminology, stating:

…the Australian government has revised the terminology used
in the strategy to combat slavery and human trafficking. There was concern
raised by stakeholders that the term ‘people trafficking’ did not necessarily
represent the full suite of offences and was also often confused with people
smuggling. The formal phrase is in fact now ‘human trafficking, slavery and
slavery-like practices’ to more accurately reflect the importance of forms of
exploitation that do not require an element of movement. Slavery, of course, does
not necessarily require movement whereas trafficking does entail movement.[40]

Distinctions between
slavery and people trafficking

2.40A number of organisations made comments about the differences between
people trafficking and slavery.

2.41The Australian Institute of Criminology (AIC) commented that the
differences between slavery and people trafficking are subject to debate,
adding that:

….there has been some discussion about what exactly the
problem is; what is the definition of trafficking? There is quite a bit of
technical debate about where the boundaries of that are, and there is the term
‘slavery’ as well. In the research we do, we follow a practice in other areas
like homicide, domestic violence and violent crime where our focus is on a type
of crime. We use the term ‘trafficking-type crime’. We could equally use the
term ‘slavery-type crime’.[41]

2.42However, Slavery Links Australia argued that slavery should be
considered as distinct from people trafficking:

Slavery is not trafficking. Consulting about trafficking will
not illumine slavery. The issues are different. The solutions are different.
The stakeholders are different.[42]

2.43The Law Council of Australia also suggested that the distinction between
slavery and people trafficking be preserved:

We are certainly aware that the submission from the Attorney-General’s
Department suggests that trafficking be used in that broader sense, and I
understand that the Australian Crime Commission witness this morning also
referred to the fact that among agencies that is what is understood—that
trafficking encompasses slavery and slavery-like conditions. Certainly if you
trace it from the conventions, they are distinct concepts. In terms of public
awareness, it may be better if those distinctions are maintained.[43]

2.44AGD observed that public reactions to the use of terms like slavery and
people trafficking may differ:

…some people might respond to a term like ‘slavery’ and
simply dismiss it out of hand and say, ‘Slavery doesn't happen in Australia,’
whereas people trafficking does have a certain resonance with people.[44]

Distinctions
between people trafficking and people smuggling

2.45The AIC emphasised to the Committee that the difference between people
trafficking and people smuggling is often misunderstood by the public:

To give you some idea of the scale of misunderstanding about
trafficking, we ran a community attitudes survey—and we will rerun it in a more
rigorous way later. We did a preliminary survey and enormous numbers of people
who responded to that confused slavery type crimes with smuggling, which is understandable
because the verb ‘trafficking’ is often misused or not used in a technical way
in the media. For example, a lot of the respondents thought that the typical
profile of a victim would be asylum seekers coming on boats. So there is a lot
of confusion about what we are talking about and we are really talking about
very, very different crimes. That is problematic in a crime prevention sense.[45]

2.46The AIC added that:

Community awareness in this area—indeed, in any kind of crime
detection area—is very important, and we are a long way from where we want to
be in terms of the average member of the community
having some understanding that it is not smuggling but actually a different
crime.[46]

2.47Australian Catholic Religious Against Trafficking in Humans (ACRATH) agreed
that many people in Australia are unable to differentiate between people
trafficking and people smuggling, noting that ‘those who have heard of human
trafficking in Australia often confuse it with people smuggling’.[47]

2.48Similarly, AGD noted that the media often conflate people smuggling and
people trafficking, stating that:

…while it and other Government agencies do all they can to maintain
and promote the distinction between these crime-types, the terms ‘people
trafficking’ and ‘people smuggling’ are unfortunately regularly used interchangeably
in media.[48]

2.49The importance of distinguishing between people trafficking and people
smuggling was emphasised by Dr Gallagher, who argued that:

It is now widely accepted that effective international action
to address trafficking and related exploitation requires explicit
acknowledgement of the legal, policy and practical distinctions between trafficking
in persons and smuggling of migrants.[49]

2.50Professor Andreas Schloenhardt of the University of Queensland made
similar comments about the importance of the differences between people
trafficking and people smuggling. Professor Schloenhardt stated that the:

…conceptual distinction between ‘smuggling of migrants’ and
‘trafficking in persons’ is subtle, and sometimes blurry, but is imperative as
both phenomena are addressed by separate international legal instruments with
widely different requirements and consequences.[50]

2.51AGD highlighted the difference between people trafficking and people
smuggling as distinct crimes, stating:

The specific crime of people trafficking is the physical
movement of people domestically or across borders through the use of deceptive
means, coercion or force. Importantly, people traffickers are motivated by the
prospect of exploiting their victims once they reach the destination country.
People smuggling is the organised, irregular movement of people across borders,
usually on a payment-for-service basis.[51]